Containing Canakaris: tailoring Florida's one-size-fits-most standard of review.

• Author: Ryan, Nancy

Florida's appellate rules were amended in 2001, requiring for the first time that initial briefs identify the standard of review applicable to each issue raised. (1) Since that change went into effect, appellants' lawyers have searched Florida case law in vain, seeking a standard more precise than "abuse of discretion" to govern review of many rulings that involve questions of law, or of mixed law and fact. On many often raised issues, several jurisdictions have more finely tuned their appellate standards of review than has Florida. Tactful citation of out-of-state authorities in the mandatory standard-of-review portion of the briefing process is of great potential benefit, both to appellate clients and to the uniform administration of justice in this state.

As every Florida lawyer who handles appeals is well aware, "abuse of discretion" is routinely relied on by our appellate courts in a wide range of contexts as the appropriate standard of review, more often than not with a citation to Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). That case is regularly quoted for the proposition that "the appellate court must fully recognize the superior vantage point of the trial judge.... If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion." (2) That language is almost immediately preceded in Canakaris by a less often quoted, but important, qualification:

[A]ppellate courts must recognize the distinction between an incorrect application of an existing rule of law and an abuse of discretion. Where a trial judge fails to apply the correct legal rule, as when he refuses to terminate periodic alimony upon remarriage ..., the action is erroneous as a matter of law. This is not an abuse of discretion. The appellate court in reviewing such a situation is correcting an erroneous application of a known rule of law. However, where the action of the trial judge is within his judicial discretion, as in the establishment of the amount of alimony ..., the manner of appellate review is altogether different. (3)

Florida case law does appropriately recognize, in numerous contexts, that rulings on strictly legal matters may have involved "erroneous application of a known rule of law" (4); review of those rulings is de novo. (5) That standard of review "involves no more than a determination whether the issue was correctly decided in the lower court."(6) Review is de novo on purely legal issues such as whether summary judgment (7) or dismissal (8) was correctly granted, what body of law applies to a particular question, (9) and whether a contract (10) or statute (11) was correctly construed. (Other states characterize the same non-deferential standard of review as "plenary," (12) "unlimited," (13) "free review," (14) "independent judgment," (15) or "the right/wrong standard." (16)) Florida law also correctly requires deference to trial courts' findings on purely factual questions, and to their rulings designed to maintain control of courtroom proceedings. (17) Various statutory and rule provisions expressly grant the trial courts further discretion in particular subject matter areas, as does common law. (18) Older Florida cases firmly establish that such areas of discretion are finite in scope, and that "[d]iscretion is not available as a support of a conclusion in the face of a positive rule of law to the contrary." (19) Many post-Canakaris opinions blur the formerly clear distinction between rulings which are contrary to positive rules of law, and rulings which fall into discretionary subject areas but which constitute abuses of that discretion in that they are altogether unsupported by the record. (20)

Many evidentiary questions, and virtually all questions relating to jury instructions, involve application or misapplication of known rules of law, not judicial discretion; such questions should be--but are not, in Florida--dealt with as legal questions, or at least as mixed questions of fact and law, on appeal.

Jury Instructions

Florida appellate opinions, for the most part, announce broadly that "trial courts are generally accorded broad discretion in formulating jury instructions.... [T]he standard of review to be applied to a decision to give or withhold a jury instruction is abuse of discretion.... [I]f the jury instructions as a whole fairly state the applicable law, failure to give a particular instruction will not be error." (21) At least 15 other jurisdictions deem questions of how to word the instructions in a given case, and whether...